Questions?

1.02.2011

Forty-two years ago today in 1969, Canada bade farewell to Ivan Rand, a former Associate Justice of the Canadian Supreme Court, who passed away at age 84.

In his judgments, Rand made frequent and effective use of foreign legal and constitutional materials to decide matters of purely domestic law. He was an early advocate of the cross-national discourse in which High Court judges engage when they draw from each others' work.

It would be a mistake, though, to regard Rand as a proponent of convergence, which sees high merit in constitutional courts gradually moving to common constructions of rights and liberties. Rand was a fiercely independent nationalist who took great pride in the distinctiveness of Canadian institutions. He would therefore reject just as often as he would adopt a foreign judicial construction, practice, or legal theory.

That Rand was a comparativist at a time when foreign comparisons were not very common raises an obvious question: why was Rand so favorably inclined to foreign comparisons?

One clue comes from his education. Rand, a Canadian by birth, earned his undergraduate law degree from Harvard Law School.

This is a significant point. Most Canadians who earn law degrees from American law schools, both then and perhaps also now, earn a Master's degree in law, which typically takes only one year to complete. But in taking his undergraduate legal education in the United States, Rand was one of the relatively few Canadians who spent a full three years immersed in the study of a foreign legal jurisdiction.

It is perhaps no wonder, then, that Rand would later become a champion of the comparative enterprise.